Additional rights provided in specific circumstances
By Stuart Rudner
Our governments continue to adapt to societal issues by adding new forms of leave to employment standards legislation. Recent years have seen several new forms of leave, including those for the benefit of military reservists, employees who must care for sick relatives or employees who have other personal circumstances that justify a need for time off of work.
In Ontario, three new forms of leave were approved earlier this year, and they come into effect on Oct. 29, 2014. Specifically, the new forms of leave available to employees in Ontario governed by the Employment Standards Act, 2000 are as follows:
•Critically Ill Child Care Leave
•Crime-Related Child Death/Disappearance Leave.
These new forms of leave, all of which are unpaid, do not replace any of the existing leaves, but are in addition to them. Particularly relevant examples are Family Medical Leave and Personal Emergency Leave, which are arguably similar to the new forms of leave, but are intended to provide additional rights in specific circumstances.
Employers must remain aware of the current legislation and ensure they do not mistakenly reject requests for leaves they are required to provide by law.
Those family members who provide care to sick relatives may now be entitled to up to eight weeks of unpaid Family Caregiver Leave. This applies to those who are caring for their spouse, parent or in-law, child or stepchild, grandparent or grandchild of either the employee or their spouse, daughter or son-in-law, sibling, or any other relative who is dependent on the employee for care or assistance.
Obviously, the scope of relatives covered is deliberately broad. The eight weeks of leave have to be taken in complete weeks but do not have to be taken consecutively. Employers should note that they can request a certificate from a qualified health practitioner confirming the relative in question has a "serious medical condition" — though that term is not defined by legislation.
There is no minimum amount of notice that the employee must provide, but she is expected to advise her employer "as soon as possible" if she needs to take advantage of this type of leave.
The two other new forms of leave relate to the children of employees. While Family Caregiver Leave is available to all employees, regardless of their length of service, Critically Ill Child Care Leave is only available to those that who worked for six consecutive months for their current employer. If so, they may qualify for a maximum of 37 weeks of unpaid leave.
The child in question must be under 18 years old. Furthermore, the term "critically ill" is defined in the legislation as "a child whose baseline state of health has significantly changed and his life is at risk as a result of an illness or injury."
Employees seeking such leave are to provide a certificate from a qualified health practitioner and provide notice to the employer as soon as possible. For this leave, the employee must also provide a written plan indicating the weeks to be taken as leave.
The Crime Related Child Death or Disappearance Leave is also only available to employees with at least six consecutive months of service. This leave offers up to 104 weeks of unpaid leave in the event of a crime-related death, and up to 52 weeks in the event of a crime-related disappearance. The legislation was drafted to preclude employees from taking advantage of this leave if they were, or appear to have been, involved in the crime, or if the child was a party to the crime.
For this leave, employers may require that the employees seeking leave provide "evidence reasonable in the circumstances" in order to justify their request.
Employers must stay on top of legislative changes in order to understand their rights and obligations. Furthermore, policy manuals should be updated in order to reflect such changes in the law.
At the same time, all employees should ensure they are aware of their rights with respect to, among other things, leaves of absence. While people may assume they have no recourse, the legislation is evolving in order to provide assistance to employees in need of time away from work.
